Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burr Rd. Operating Co. II, LLC v. New Eng. Health Care Emples. Union

Appellate Court of Connecticut

January 26, 2016

BURR ROAD OPERATING COMPANY II, LLC
v.
NEW ENGLAND HEALTH CARE EMPLOYEES UNION, DISTRICT 1199

         Argued October 14, 2015

Page 1239

[Copyrighted Material Omitted]

Page 1240

          Application to vacate an arbitration award, brought to the Superior Court in the judicial district of Hartford, where the defendant filed an application to confirm the award; thereafter, the matter was tried to the court, Hon. Robert F. Stengel, judge trial referee; judgment denying the application to vacate and granting the application to confirm, from which the plaintiff appealed to this court, which reversed the trial court's judgment and remanded the case with direction to render judgment granting the application to vacate and denying the application to confirm; thereafter, the defendant, on the granting of certification, appealed to the Supreme Court, which reversed this court's judgment and remanded the case to this court for consideration of the plaintiff's remaining claim on appeal.

          Affirmed.

          SYLLABUS

         The plaintiff skilled nursing facility, which had terminated the employment of the grievant, a certified nursing assistant, sought to vacate an arbitration award that ordered the reinstatement of the grievant with back pay and lost benefits. The grievant's termination resulted from her failure to report an incident of suspected patient abuse in a timely manner. While the grievant was working at one of the plaintiff's facilities, she overheard a conversation between two other employees that a nurse supervisor may have abused a patient. After several days, the grievant reported the incident to a social worker via telephone messages. The plaintiff terminated the grievant for her failure to make a timely report of the incident. The other employees involved in the incident received less discipline, in part, because the grievant had two prior final warnings in her personnel file. The defendant union filed a grievance on behalf of the grievant and brought the matter to arbitration pursuant to the parties' collective bargaining agreement. The unrestricted submission requested the arbitrator to determine whether the grievant had been terminated for just cause and, if not, what the remedy should be. The arbitrator determined that although the grievant failed to make a timely report of the incident and she knew the rule that she was required to report the suspected abuse without delay, the fact that she belatedly came forward and reported it was a significant mitigating factor, and the plaintiff, thus, lacked just cause to terminate her employment. The arbitrator concluded that the plaintiff had just cause to suspend the grievant for one month without pay and, accordingly, ordered the grievant reinstated. The plaintiff filed an application to vacate the arbitration award pursuant to statute (§ 52-418 [a]), claiming that it violated this state's public policy and that the arbitrator had exceeded his authority under the collective bargaining agreement. The defendant filed an application to confirm the award. The trial court rendered judgment denying the plaintiff's application to vacate and granting the defendant's application to confirm, from which the plaintiff appealed to this court, which reversed the judgment, concluding that the arbitration award violated public policy. Thereafter, the defendant, on the granting of certification, appealed to our Supreme Court, which reversed this court's judgment and remanded the case to this court for consideration of the plaintiff's remaining claim on appeal. Held that the trial court properly denied the plaintiff's application to vacate the arbitration award as the arbitrator did not exceed his authority under the collective bargaining agreement: the plaintiff's contention that the arbitrator failed to give dispositive weight to the two final warnings in the grievant's personnel file was without merit, there having been no language in the collective bargaining agreement defining the role of a final warning in disciplinary proceedings or requiring termination if an infraction occurs while there is a final warning in an employee's personnel file, and the determination of the role and weight to be accorded final warnings under the collective bargaining agreement was solely within the province of the arbitrator; moreover, contrary to the plaintiff's assertion that the arbitrator impermissibly added terms to the collective bargaining agreement by considering mitigating circumstances and refusing to consider certain alleged admissions by the grievant, the arbitrator acted within the scope of his authority under the unrestricted submission and the collective bargaining agreement because in order to answer the submission, the arbitrator was required to determine what just cause to terminate meant within the context of the collective bargaining agreement, and in construing the term " just cause," which was not defined in the agreement, the arbitrator was permitted to look for guidance from various sources, and by construing that term in a manner consistent with its general usage in the field of labor agreements, the award patently drew its essence from the collective bargaining agreement; accordingly, because the arbitrator arguably was construing and applying the collective bargaining agreement and was acting within the scope of his authority, the trial court was bound by his legal and factual determinations, and, therefore, the court properly denied the plaintiff's application to vacate the arbitration award.

         Jeffrey R. Babbin, with whom, on the brief, was Andrea C. Kramer, for the appellant (plaintiff).

         Michael E. Passero, for the appellee (defendant).

         DiPentima, C. J., and Beach and Bear, Js.

          OPINION

Page 1241

         [162 Conn.App. 527] BEAR, J.

         This appeal comes to us on remand from our Supreme Court. In Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, District 1199, 142 Conn.App. 213, 214-15, 70 A.3d 42 (2013), rev'd, 316 Conn. 618, 621, 114 A.3d 144 (2015), this court held that an arbitration award " reinstating the grievant, Leoni Spence, who is an employee of the plaintiff, Burr Road Operating Company II, LLC . . . and a member of the defendant, New England Health Care Employees Union, District 1199," violated public policy, and we reversed the trial court's determination to the contrary. Our Supreme Court reversed our decision, holding that the award did not violate public policy. Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, District 1199, 316 Conn. 618, 621, 114 A.3d 144 (2015) ( Burr Road ). Consequently, the court remanded the case to us with the direction to consider the plaintiff's remaining claim.[1] Id., 651. The sole remaining issue for our consideration is whether the trial court improperly denied the plaintiff's application to vacate the award pursuant to General Statutes § 52-418 (a) (4)[2] because the arbitrator [162 Conn.App. 528] exceeded his authority. We conclude it did not and accordingly affirm the judgment of the trial court.

         The facts relevant to our resolution of the plaintiff's remaining claim, as set forth by our Supreme Court, are as follows. " The plaintiff operates a 120 bed skilled nursing facility known as the Westport Health Care Center (Westport). . . . The grievant was employed there as a certified nursing assistant from 2002 until the termination of her employment in 2010, and is represented by the defendant. . . .

         " Between 2005 and 2009, the grievant was the subject of three disciplinary actions that have remained part of her personnel file. . . . In 2005, she received a suspension and final warning after she improperly restrained a resident by using a bed sheet to tie him into his wheelchair. . . . In April, 2009, she received a written warning for speaking to a resident in an inappropriately rude, loud, and scolding manner, and for being insubordinate and disrespectful to her shift supervisor, registered nurse Gay Muizulles. . . . Finally,

Page 1242

in August, 2009, the grievant received a [second] and [f]inal written warning for addressing a resident disrespectfully and touching that resident without first explaining the procedure involved." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 621-22.

         The particular incident giving rise to the plaintiff's termination of the grievant's employment began on Saturday, March 20, 2010. Id., 622. During a night shift beginning on the evening of March 20 and ending on the morning of March 21 in Westport's Riverside unit (Riverside), the grievant overheard a conversation between two coworkers, Dezra Leonard and Laurel Johnson. Id. " On the basis of the conversation she overheard, the grievant concluded that Muizulles had been involved in an incident [in Westport's Woodside unit [162 Conn.App. 529] (Woodside)] in which a resident had been crying. . . . Although the grievant could not be certain, she also believed that the incident might have involved abuse. . . . Before her shift ended, the grievant went to Woodside to . . . investigate. . . . The residents were all asleep, however, and no one was crying." (Citations omitted.) Id., 622-23. The grievant failed to report her suspicions immediately, because, as found by the arbitrator, " [she] didn't know for sure that there had been abuse . . . ." (Internal quotation marks omitted.) Id., 623. Further, " [t]here . . . is no indication that she pursued the matter the following night shift, from Sunday, March 21, to Monday, March 22, when she again worked on Riverside with Muizulles." Id.

         " The first shift that the grievant worked on Woodside after the suspected incident was the next night, from Monday, March 22, to Tuesday, March 23. . . . During that shift, she had occasion to speak with a resident of Woodside, who told the grievant that, on the previous Saturday night, Muizulles had been somewhat rough while helping her get her legs up onto her bed, had spoken gruffly, and had turned down the television without asking permission. . . . The resident's roommate confirmed that these events had upset the resident, who had cried for some time afterward. . . .

         " The grievant realized that this was likely the incident she had overheard Johnson and Leonard discussing during the Saturday night shift. . . . The grievant comforted the resident, explained to her that she should not have been subjected to such treatment, and informed her that she should feel comfortable reporting it. . . . The grievant suggested that she could arrange for someone to come and speak to the resident about what had happened to her, and the resident agreed." (Citations omitted.) Id., 623. Subsequently, " [a]fter her shift ended on Tuesday morning, the grievant went home and tried to call a social worker at Westport. . . . [162 Conn.App. 530] The social worker was not available, however, so the grievant left her three lengthy voice mail messages reporting what the resident had told her and urging the social worker to talk to the resident." (Citation omitted.) Id., 624.

         After " a thorough investigation of Muizulles' treatment of the resident," the plaintiff determined that, although insensitive, her treatment did not rise to the level of abuse or neglect and gave her a five day suspension and a final warning. Id., 624. During this investigation, " the plaintiff also concluded that three staff members . . . [one of whom was] the grievant . . . had failed to fulfill their obligations promptly to report Muizulles' possible abuse." Id. Johnson received a suspension and a final warning,

Page 1243

and the other staff member received a suspension. Id. " There is no indication in the record that Leonard was ever disciplined for her failure to report what Johnson had told her." Id.

         " By contrast, the plaintiff terminated the grievant's employment on the ground that she had failed to make a timely report of an allegation of resident abuse. . . . It subjected her to more serious discipline than Muizulles, Johnson, and the [other staff member] because, unlike those employees, the grievant already had a final warning in her employee file. Prior to terminating the grievant's employment, the plaintiff never informed her that she was under investigation, nor afforded her any opportunity to tell her side of the story or to explain or to clarify why she did not immediately report her suspicions after her shift had ended on Sunday morning. . . . 'This most rudimentary due process,' the arbitrator remarked, 'was not afforded to the grievant.'

         " The grievant grieved her termination, and the defendant took the termination to arbitration pursuant to the collective bargaining agreement between the parties. The parties asked the arbitrator to determine: (1) [162 Conn.App. 531] whether the grievant had been terminated for just cause; and (2) if not, what the remedy should be." (Citations omitted.) Id., 624-25.

         The arbitrator determined that " the grievant improperly had delayed reporting an incident of suspected resident abuse" and, thus, " was guilty of the offense of failing to timely report to a nursing supervisor (or higher authority) the information that had come into her possession . . . ." (Internal quotation marks omitted.) Id., 625-26. In evaluating whether just cause existed to terminate the grievant's employment for her failure to timely report, the arbitrator considered a health care provider's statutory duty to report suspected abuse[3] and the potential harms that could arise if an employee delays reporting, ultimately " credit[ing] the plaintiff's argument that a delay in reporting is almost as bad as not reporting at all." (Internal quotation marks omitted.) Id., 626. " The arbitrator also concluded, however, that it was 'an important mitigating fact that the grievant was the one who actually came forward, although belatedly, and made [the plaintiff] aware of the problem. If the grievant had not come forward on March 23, it is quite likely that [the plaintiff] never would have learned of the insensitive treatment given by Muizulles, nor of the failure to report by multiple staff members. It is important to recognize that contribution which the grievant made, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.